High Court To Examine Cellphone Privacy

WASHINGTON -- Delving into the legal jungle of privacy and
technology, the Supreme Court agreed Friday to consider two cases that
test whether cellphones and smartphones can be searched without a
warrant.

The cases, which could be heard by the court in April and
decided by late June, involve searches performed by police that turned
relatively minor traffic and drug infractions into major felony
convictions. In both cases, the crucial information was found on the
suspects' mobile phones.

On one level, the cases represent an
inevitable Supreme Court entry into the world of cellphones, owned by
more than nine in 10 American adults. In the past few years, courts from
California to Texas to Florida have split over the issue of cellphones
and digital content.

On another level, the cases may be just a precursor to more expansive
and potentially explosive high court inquiries. Those could include an
examination of the National Security Agency's phone and computer
surveillance methods, on which two federal district judges have diverged
in recent weeks.

In the past few years, the high court has ruled
on the use by police of other innovations, such as GPS devices and
thermal imaging. The justices generally, but not always, have come down
on the side of privacy rights.

Not far behind the issue of
cellphone searches is another legal conundrum: whether police can get
the location of cellphone users from service providers without a
warrant. Lower courts have split on that issue as well, making a Supreme
Court showdown likely in the future.

THE WAVE OF THE FUTURE

Several
justices have acknowledged that the clash of privacy and technology is
likely to dominate the court's docket for years to come. That's
worrisome because they live in a marble palace of ivory paper and quill
pens.

"Frankly ... we're not all technologically expert," Chief
Justice John Roberts said in a 2012 speech. More recently, Justice Elena
Kagan quipped that "e-mail is already old-fashioned, and the court
hasn't gotten to that yet."

The facts about what police can do when making an arrest have been
clear for 40 years: They can search the person being arrested and what's
within reach, with an eye toward weapons or evidence that could be
destroyed.

Cellphones and, increasingly, smartphones that mimic
computers have clouded those facts. At least six federal or state
appellate courts have ruled that they are fair game; at least three
others have said search warrants are required.

'OUR MOST SENSITIVE INFORMATION'

The two cases that the court will hear have reached opposite conclusions so far:

In U.S. v. Wurie,
police opened Brima Wurie's flip-phone to view the phone number
associated with repeated incoming calls. That led them to get a search
warrant for his apartment, where they seized crack cocaine, marijuana,
cash, a firearm and ammunition. Wurie was convicted and sentenced to
more than 20 years in prison.

The 1st Circuit appeals court
reversed on two counts, ruling that the cellphone search violated
Wurie's constitutional protection against unreasonable search and
seizure.

The Justice Department asked the Supreme Court to take
the case, contending that "police have full authority not only to seize
any object they find on an arrestee, but also to search its contents."

In Riley v. California,
a routine traffic stop led police to discover David Riley's suspended
license. They impounded his car, found two guns under the hood, and
arrested him for concealing weapons.

Upon his arrest and again at the police station, they searched his
Samsung smartphone, including text messages, photos and video. Based on
that evidence, Riley was convicted and sentenced to at least 15 years in
prison; the conviction was upheld at the state appeals court, and the
state Supreme Court refused to reconsider it.

"A cellphone
nowadays is a portal into our most sensitive information and the most
private aspects of our lives," says Jeffrey Fisher, lead attorney for
David Riley and co-director of Stanford University's Supreme Court
Litigation Clinic. "It's also a device that is the gateway to your
office, health records, bank records."

The Pew Research Center
estimates that 56% of Americans have a smartphone, 31% seek medical
information on their cellphones, and 29% use them for online banking.